Brown & Gay Eng’g Inc. v. Olivares – Gov’t Contractor Denied Sovereign Immunity Protection


Sovereign immunity is a legal principal that holds the government can’t be held liable in tort cases the same way individuals can unless a waiver is granted. F.S. 768.28 covers sovereign immunity waivers, and essentially allows the state and its agencies and subdivisions to be liable for tort claims the same way and to the same extent as private individuals under the same circumstances.

There are, however a number of caveats to this. For example, the state can’t be responsible to pay punitive damages or pre-judgment interest. Also, if any one claim exceeds $200,000 per person or $300,000 per occurrence, that amount has to be approved by the state legislature.

Still, it’s not uncommon for government agencies to assert protection by way of sovereign immunity in various tort actions, and sometimes they are successful. But what a recent case before the Texas Supreme Court held was that even if a government agency has sovereign immunity protection, government contractors can’t expect the same just because they were doing government work.

Brown & Gay Engineering, Inc. v. Olivares stems from a drunk driving accident on the tollway, a section of road that was engineered and designed by defendant and owned by a local government corporation.

The crash happened early on New Year’s Day, 2007. A drunk driver entered an exit ramp onto the tollway traveling the wrong direction. He proceeded east in the westbound lanes for about eight miles. He then collided with another vehicle. Both drivers were killed.

Personal representatives of the victim’s estate (his mother and father) brought a lawsuit against the local government corporation (an entity of the county) and the engineering firm.

The engineering firm had contracted with the local government corporation to design the road signs and traffic layouts and other details of the roadway, subject to the government’s approval. The engineering firm was contractually bound to maintain all insurance for the project, including workers’ compensation, business auto liability, umbrella excess liability, professional liability and commercial general liability.

Victims parents alleged failure to design and install appropriate warning flashers, signs and other traffic control devices near the exit ramp where the drunk driver entered the tollway, proximately resulting in their son’s death.

The local government corporation (which had none of its own employees and was created by the county solely for the purpose of handling this project), pleaded for governmental immunity. Although the trial court denied, the appeals court reversed, finding the authority immune from claims based on discretionary acts. The case was remanded and plaintiffs were allowed to amend their complaint to reflect engineering firm as sole defendant.

However, the engineering firm argued it too should receive sovereign immunity. It argued as an “employee” of the local government, and therefore also immune. The trial court agreed, but the appeals court reversed.

The appeals court ruled defendant engineering firm was not an “employee” of the government’s, but rather an independent contractor, and government protections didn’t extend to contractors.

Texas Supreme Court affirmed the appeals court decision. It rejected the defense argument that sovereign immunity was extended to private entities performing authorized governmental functions the government itself would otherwise do and for which it would be immune.

If you have been injured in an accident, contact the Hollander Law Firm at (561) 347-7770 for a free and confidential consultation. There is no fee unless we win.

Additional Resources:

Brown & Gay Engineering, Inc. v. Olivares , April 24, 2015, Texas Supreme Court

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Hurtado v. Desouza – Evidence Error in $1M Crash Case Warrants New Trial, April 30, 2015, West Palm Beach Accident Lawyer Blog